United States District Court, E.D. Arkansas, Jonesboro Division
ORDER REMANDING TO THE COMMISSIONER
Tammy
Eldridge (“Eldridge”) applied for social security
disability benefits with an alleged disability onset date of
May 29, 2014. (R. at 65). After conducting an administrative
hearing, the administrative law judge (“ALJ”)
denied her applications. (R. at 26). After the Appeals
Council denied Eldridge's request for review (R. at 1),
the ALJ's decision became final. Eldridge has requested
judicial review.[1]
For the
reasons stated below, the Court reverses and remands the
Commissioner's decision.
I.
The Commissioner's Decision
The ALJ
found that Eldridge had engaged in substantial gainful
activity between April 2015 and September 2015 but that there
was a continuous twelve- month period during which Eldridge
did not engage in substantial gainful activity. (R. at
16-17). The ALJ found that Eldridge had the severe
impairments of degenerative joint disease of the right
shoulder, degenerative joint disease of the left knee,
post-traumatic stress disorder, and anxiety. (R. at 17).
Based on those impairments, the ALJ determined that Eldridge
had the residual functional capacity (“RFC”) to
lift/carry and push/pull ten pounds occasionally and less
than ten pounds frequently[2]; stand and or walk for six hours in an
eight-hour workday; sit for six hours in an eight-hour
workday; only use her right upper extremity as an assistive
device to her left upper extremity; occasionally use her
right hand for gross manipulation and frequently for fine
manipulation; understand, remember, and carry out simple,
routine tasks and make decisions in simple work-related
situations; respond appropriately to supervisors and
coworkers with occasional incidental personal contact; have
no contact with the general public; and respond appropriately
to minor changes in the usual work routine. (R. at 19-20).
Based
on the restrictions imposed by this RFC, the ALJ concluded
that it precluded Eldridge from performing her past relevant
work. (R. at 24). However, a vocational expert
(“VE”) testified that the RFC would allow
Eldridge to perform other jobs available in the national
economy, including work as a machine operator and flagger.
(R. at 25). Accordingly, the ALJ held that Eldridge was not
disabled. (R. at 25-26).
II.
Discussion
Eldridge
argues that the ALJ failed to resolve a possible conflict
between the VE's testimony and the Dictionary of
Occupational Titles (“DOT”) and improperly
discounted the opinions of her treating doctors. Because the
Court concludes that the ALJ did not resolve the conflict
between the VE's testimony and the DOT, it is not
necessary to reach Eldridge's other point for reversal.
The
Court's function on review is to determine whether the
Commissioner's decision is supported by substantial
evidence on the record as a whole and whether it is based on
legal error. Miller v. Colvin, 784 F.3d 472, 477
(8th Cir. 2015); see also 42 U.S.C. § 405(g).
The ALJ
posed a hypothetical question to the VE in which Eldridge was
limited to occasional handling or gross manipulation with her
right arm. (R. at 59- 60). In response to the hypothetical
question, the VE identified the jobs of machine operator (DOT
No. 690.685-014) and flagger (DOT No. 372.667-022). (R. at
60). However, according to the Selected Characteristics
of Occupations Defined in the Revised Dictionary of
Occupatial Titles (“SCO”), both of these
jobs require frequent handling. Eldridge argues that this
creates a conflict between the VE's testimony and the DOT
requiring remand.
The
Commissioner argues that there is no “apparent”
conflict because the ALJ did not limit Eldridge's ability
to handle with her left arm. Both Eldrdige and the
Commissioner rely on Kemp ex rel. Kemp v. Colvin,
F.3d 630 (8th Cir. 2014) to support their positions. However,
the Commissioner misstates the Court's holding in
Kemp to support the position that the VE's
testimony in response to a hypothetical question alone is
sufficient to overcome the conflict. In Kemp, the
Court specifically noted that “SSR 00-4p uses other
phrases to describe a conflict between VE evidence and the
DOT/SCO: ‘conflict,' ‘any conflict,'
‘apparent conflict,' ‘apparent unresolved
conflict.' There does not appear to be any difference in
the meaning of these phrases, and we use the phrase
‘possible conflict' to encompass them all.”
Id. at 633 n. 2. In short, the Court in
Kemp did not restrict the conflicts that the ALJ
must resolve as the Commissioner contends. Rather, the Court
charged that “the ALJ has an affirmative responsibility
to ask about ‘any possible conflict.'”
Id. at 633. Here, just as in Kemp, the ALJ
and the VE failed to address and account for the conflict
between the VE's testing and the DOT and then reconcile
the differences. (R. at 58-63).
Finally,
Ms. Eldridge testified that she is right-handed. (R. at 60).
It stands to reason that a manipulative limitation in a
claimant's dominant hand would be more restrictive than
the same limitation in the non-dominant hand. In fact, during
her testimony, the ALJ specifically asked if her right arm
was dominant. (R. at 60). Where the DOT/SCO states that an
occupation requires frequent handling and the ALJ's
hypothetical question to the VE limits the claimant to
occasional handling with the dominant arm, this creates an
obvious conflict that requires an explanation from the VE.
III.
Conclusion
It is
not the task of this Court to review the evidence and make an
independent decision. Neither is it to reverse the decision
of the ALJ because there is evidence in the record which
contradicts his findings. The test is whether there is
substantial evidence in the record as a whole which supports
the decision of the ALJ. Miller, 784 F.3d at 477.
The Court has reviewed the entire record, including the
briefs, the ALJ's decision, and the transcript of the
hearing. The Court concludes that the record as a whole does
not contain ample evidence that "a reasonable mind might
accept as adequate to support [the] conclusion" of the
ALJ in this case. Richardson v. Perales, 402 U.S.
389, 401 (1971). The ALJ's decision is therefore REVERSED
and REMANDED to the Commissioner with ...